Commonwealth v. Hernandez, 2014 Mass. Super. LEXIS 144 (Super. Ct. Bristol August 26, 2014) (“Because the Commonwealth failed to sustain its burden of proof that the cell phones and iPads were in plain view, that their incriminating character was immediately apparent, and that they were discovered inadvertently, their seizure cannot be justified under the plain view doctrine.” A search warrant for one cell phone doesn’t warrant seizure of all cell phones to see if they are the one named. All they had to do was call the subject phone to identify it.) [See update at bottom]:
In this case, as is set forth in the Affidavit before the Search Warrant was sought the police had seen the phone with the designated number and had employed a means to confirm that it was the phone with the designated number, namely by calling it. Assuming that the cell phones at the residence contained no outward indication of the numbers assigned to them, it does not follow that it was proper for the police to seize those phones. Cf. Commonwealth v. Burdulis, 2012 Mass.App. Unpub. LEXIS 953 at *6-7 (Rule 1:28) (where warrant authorized seizure of computer and search for pornographic files, police were not required to obtain second warrant to actually extract and analyze files). In conducting a search pursuant to a warrant, police may conduct a cursory inspection of an object to determine whether it matches items listed in the warrant. Commonwealth v. McDermott, 448 Mass. 750, 776, cert. den., 552 U.S. 910 (2007) (police with warrant to seize documents relating to murder weapons and defendant’s mental functioning could seize computer and disks and conduct cursory examination of files using keywords); Commonwealth v. D’Amour, 428 Mass. at 731 (police with warrant to seize documents relating to ownership of firearms entitled to briefly examine any letter found to determine its content); Commonwealth v. Ericson, 85 Mass.App.Ct. at 333-34 (police with warrant to seize specific image sent from defendant’s phone on particular date authorized to make cursory review of images on phone to find the three images listed in the warrant). Such perusal must cease at the point it becomes clear that the warrant is inapplicable. United States v. Abbell, 963 F.Sup. 1178, 1198 (D.Mass. 1997).
By analogy, police with a warrant authorizing the seizure of a cell phone with an identified assigned number are permitted, if necessary, to conduct a cursory inspection of a cell phone found on the premises to determine if it is within the scope of the warrant. The two-step procedure outlined by the Commonwealth, seizure of all cell phones pending a separate warrant to determine if any has the specified phone number, might be necessary if police are unable, through a cursory examination at the scene or otherwise, to determine which phone is the one specified in the warrant. Cf. Commonwealth v. McDermott, 448 Mass. at 776 (in conducting search of computers for documents authorized by warrant, police are afforded considerable discretion in how to proceed).
The two-step procedure advocated by the Commonwealth was neither necessary nor appropriate with respect to the Apple iPhone 5 and the Blackberry Bold in this case and, even if it were, the Commonwealth did not employ the two-step procedure it now claims is required. The police never sought a warrant to search the Apple iPhone 5 or the Blackberry Bold in order to determine whether its number was (203) 606-8969.
The police knew that the locked white iPhone was not Hernandez’s phone because they had seen him use his phone at the station and it was a black Blackberry phone and not a white iPhone. The police also could have dialed (203) 606-8969 at the residence to see whether either phone at the residence rang. There appears to be no reason that the police could not have powered on the unlocked Blackberry Bold at the scene and ascertained that it was not the phone specified in the warrant. This is particularly the case because a cell phone’s phone number can be found without searching the phone’s contents, at least where, as here, the Blackberry Bold was not locked and passcode protected. In this case, the police actually had in their possession a black Blackberry Z10 with the number specified in the Search Warrant before they left Hernandez’s residence. As soon as the police had the Blackberry Z10 in their possession, they had the right to open that phone, visually examine it, and determine if it was the phone described in both the warrant Giossi had obtained and the Search Warrant obtained by Cherven.
The Commonwealth did not use the two-step procedure it now contends was required to determine if any of the phones seized had the number (203) 606-8969. Giossi secured a warrant before the seizure of the Blackberry Z10 that permitted both the seizure and search of the phone with the number (203) 606-8969. No warrant was ever sought to examine the Blackberry Bold. The warrant to search the white “bedazzled” iPhone was not sought for several months and, when it was sought, it most definitely was not part of a two-step procedure to determine whether it was the phone with the number appearing in the Search Warrant. When the warrants to search the white iPhone were sought, the police not only knew that the Blackberry Z10 was the one specified in the Search Warrant but they also knew that the phone number for the white iPhone was (860) 502-3593 and not (203) 606-8969. The California and the Massachusetts warrants for search of the white iPhone contradict, rather than support, the Commonwealth’s contention that a two-step procedure was used to determine if either of the phones seized from Hernandez’s residence was the one described in the Search Warrant.
Accordingly, this Court concludes that the Commonwealth is not entitled to the fruits of the seizure of the iPhone and Blackberry Bold merely because the Search Warrant authorized the seizure of a cell phone with the number (203) 606-8969.
Commonwealth v. Hernandez, 2014 Mass. Super. LEXIS 146 (Super. Ct. Bristol October 10, 2014) (search warrant for cell phone was valid, even though it was transferred to the possession of defendant’s criminal defense lawyers):
The warrant for the phone is valid. The defendant’s argument that the warrant allows only for a search of the phone after it is already in the Commonwealth’s possession lacks merit. Obviously it would have been impossible to search the phone without first taking it into police custody. As is made clear in the affidavit in support of the warrant, the police did not yet have the phone when the warrant was sought. The defendant’s construction of the warrant would mean that Hernandez, had he still had the phone in his actual possession, could have avoided its immediate seizure merely by remaining away from his North Attleboro home. By securing an independent warrant for a phone in the possession of Hernandez, the police obtained authority to seize the phone from Hernandez even if he were found to be outside the curtilage of his home. A “seizure” of property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” Soldal v. Cook County, 506 U.S. 56, 63 (1992). The warrant authorizing a search of data files in Hernandez’s phone in his possession permitted the seizure of that phone in Hernandez’s possession in order to carry out the search. “Where, as here, the search and seizure of electronically stored information is at issue, ‘the normal sequence of “search” and then selective “seizure” is turned on its head;’ first, the government seizes the property, then it searches it.” Preventive Medicine Associates, Inc. v. Commonwealth, 465 Mass. 810, 817 n.13 (2013).
The warrant for the phone conforms to constitutional standards for specificity. It allows the search and seizure of a particular phone—”a Cellular Phone with phone number 203-606-8969″—and it specifies the person from whom the phone may be seized—”Aaron Hernandez.” The person of Hernandez is, in effect, the location. The Fourth Amendment permits the issuance of a search warrant for the search of a particularly described person without limitation as to a specified premise. See United States v. Baca, 480 F.2d 199, 203 (10th Cir.), cert. den., 414 U.S. 1008 (1973) (warrant that authorized search of defendant and search of designated premises authorized search of defendant at different location); Commonwealth v. Franklin, 990 A.2d 795, 800 (Pa.Sup.Ct. 2010) (prevailing view is that warrant may issue for search of a person and search may occur at location not named in warrant); State v. O’Campo, 644 P.2d 985, 988 (Idaho Ct.App. 1982) (warrant properly issued for search of defendant and his luggage). The warrant for the phone does not authorize the seizure of the phone from the premises of Ropes & Gray or from any person other than Hernandez himself. See Lohman v. Superior Ct., 69 Cal.App.3d 894, 900-03 (Cal.Ct.App. 1977) (where police had warrant authorizing search of particularly described person, that person was, in effect, a “place” to be searched and police entitled to conduct limited detention of that person, if found in public, to search him but could not enter private residence not described in warrant to do so).
Search of Law Offices
G.L.c. 276, §1 provides, in relevant part, as follows:
[N]o search warrant shall issue for any documentary evidence in the possession of a lawyer … unless, in addition to the other requirements of this section, a justice is satisfied that there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue … For purposes of this paragraph, “documentary evidence” includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films or papers of any type or description.
The appellate courts have not yet ruled whether the term “documentary evidence” as used in the statute includes physical items such as cell phones and computers that may contain documents like text messages, e-mails, PDFs, photographs, videos, drawings, spreadsheets and writings in other formats. A warrant authorizing the search for an object such as a phone creates a far different and far smaller risk of exposure to attorney-client privileged documents in an attorney’s office during the search than a warrant authorizing the search for specified documents. Cf. O’Connor v. Johnson, 287 N.W.2d 400, 404-05 (Minn. 1979) (warrant authorizing search of an attorney’s office is unreasonable because, if police are permitted to rifle through and peruse an attorney’s files for documents listed in a warrant, even the most particular warrant cannot adequately safeguard the attorney-client privilege, the attorney’s work product, and the criminal defendant’s constitutional right to counsel).
Because the warrants obtained by the police did not permit the seizure of the phone from any person other than Hernandez and from any premises other than Hernandez’s North Attleboro residence, the Court need not reach the argument made by the defendant that the warrant fails because it does not comply with the special provisions in G.L.c. 276, §1 for search warrants seeking documentary evidence in the possession of a lawyer. Resolution of the defendant’s motion to suppress does not turn on whether law enforcement could have obtained a further warrant to search for the phone at the premises of Ropes & Gray simply by filing a supplemental affidavit with the magistrate attesting to no additional facts other than what had been discovered regarding the phone’s location or whether law enforcement was required to obtain a further warrant from a justice setting out probable cause that the phone would be destroyed, secreted, or lost in the event that a search warrant did not issue.
Commonwealth v. Hernandez, 2014 Mass. Super. LEXIS 145 (Super. Ct. Bristol October 10, 2014) (search warrant for house; a towel not listed in warrant is only subject to plain view exception and its evidentiary value was not readily apparent; granted as to it, denied as to everything else seized, including a car in the garage).
The cases were on Lexis again December 8 with new citations, as follows:
Commonwealth v. Hernandez, 2014 Mass. App. Div. LEXIS 58 (Super. Ct. Bristol August 26, 2014)
Commonwealth v. Hernandez, 2014 Mass. App. Div. LEXIS 59 (Super. Ct. Bristol October 10, 2014)
Commonwealth v. Hernandez, 2014 Mass. App. Div. LEXIS 62 (Super. Ct. Bristol October 10, 2014)
Commonwealth v. Hernandez, 2014 Mass. App. Div. LEXIS 64 (Super. Ct. Bristol October 10, 2014)
